Alliant Energy Corporation v. joey schumer / alliant energy
Claim Number: FA1903001833248
Complainant is Alliant Energy Corporation (“Complainant”), represented by Thomas L. Holt of Perkins Coie LLP, Illinois, USA. Respondent is joey schumer / alliant energy (“Respondent”), Canada.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <alliantenergycorpservices.us>, registered with GoDaddy.com, LLC.
The undersigned certifies that he has acted independently and impartially and to the best of his knowledge has no known conflict in serving as Panelist in this proceeding.
Charles A. Kuechenmeister
Complainant submitted a Complaint to the Forum electronically on March 8, 2019; the Forum received payment on March 8, 2019.
On March 11, 2019, GoDaddy.com, LLC confirmed by e-mail to the Forum that the <alliantenergycorpservices.us> domain name (the Domain Name) is registered with GoDaddy.com, LLC and that Respondent is the current registrant of the name. GoDaddy.com, LLC has verified that Respondent is bound by the GoDaddy.com, LLC registration agreement and has thereby agreed to resolve domain disputes brought by third parties in accordance with the U.S. Department of Commerce’s usTLD Dispute Resolution Policy (the “Policy”).
On March 11, 2019, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint setting a deadline of April 1, 2019 by which Respondent could file a Response to the Complaint, via e-mail to all entities and persons listed on Respondent’s registration as technical, administrative, and billing contacts, and to postmaster@alliantenergycorpservices.us. Also on March 11, 2019, the Written Notice of the Complaint, notifying Respondent of the e-mail addresses served and the deadline for a Response, was transmitted to Respondent via post and fax to all entities and persons listed on Respondent’s registration as technical, administrative and billing contacts.
Having received no response from Respondent, the Forum transmitted to the parties a Notification of Respondent Default.
On April 2, 2019, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Charles A. Kuechenmeister as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the Forum has discharged its responsibility under Paragraph 2(a) of the Rules for usTLD Dispute Resolution Policy ("Rules") "to employ reasonably available means calculated to achieve actual notice to Respondent" through submission of Electronic and Written Notices, as defined in Rule 1 and Rule 2. Therefore, the Panel may issue its decision based on the documents submitted and in accordance with the usTLD Policy, usTLD Rules, the Forum's Supplemental Rules and any rules and principles of law that the Panel deems applicable, without the benefit of any response from Respondent.
Complainant requests that the domain name be transferred from Respondent to Complainant.
A. Complainant
Complainant is a public utility holding company and the parent of Alliant Energy Corporate Services. Complainant has rights in the ALLIANT ENERGY mark through its trademark registrations with the United States Patent and Trademark Office (“USPTO”) (Reg. No. 3,063,770, registered Feb. 28, 2006). Respondent’s Domain Name is confusingly similar to Complainant’s ALLIANT ENERGY mark as it incorporates the mark in its entirety, merely adding the descriptive terms “corp” and “services.”
Respondent has no rights or legitimate interests in the Domain Name. He is not licensed or authorized to use Complainant’s ALLIANT ENERGY mark and is not commonly known by the Domain Name. Respondent is not using the Domain Name in connection with a bona fide offering of goods or services or a legitimate noncommercial or fair use because he intends to use it for an email account with which to impersonate Complainant’s employees and seek to deceive third-party vendors into filling fake orders for various products under Complainant’s identity.
Respondent registered and uses the Domain Name in bad faith. Respondent knew of Complainant’s rights in the ALLIANT ENERGY mark when he registered the Domain Name. Further, he is using or intending to use it to redirect third parties for his own commercial gain.
B. Respondent
Respondent did not submit a Response in this proceeding.
Paragraph 15(a) of the Rules instructs this Panel to "decide a complaint on the basis of the statements and documents submitted in accordance with the Policy, these Rules and any rules and principles of law that it deems applicable."
Paragraph 4(a) of the Policy provides that in order to obtain an order cancelling or transferring a domain name, Complainant must prove each of the following three elements:
(1) the domain name registered by Respondent is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and
(2) Respondent has no rights or legitimate interests in respect of the domain name; and
(3) the domain name has been registered or is being used in bad faith.
Given the similarity between the Uniform Domain Name Dispute Resolution Policy (“UDRP”) and the usTLD Policy, the Panel will draw upon UDRP precedent as applicable in rendering its decision, except where differences in the two policies require a different analysis.
In view of Respondent's failure to submit a response, pursuant to paragraphs 5(f), 14(a) and 15(a) of the Rules the Panel will decide this administrative proceeding on the basis of Complainant's undisputed representations and draw such inferences it considers appropriate pursuant to paragraph 14(b) of the Rules. The Panel is entitled to accept all reasonable allegations and inferences set forth in the Complaint as true unless the evidence is clearly contradictory. See Vertical Solutions Mgmt., Inc. v. webnet-marketing, inc., FA 95095 (Forum July 31, 2000) (holding that the respondent’s failure to respond allows all reasonable inferences of fact in the allegations of the complaint to be deemed true); see also Talk City, Inc. v. Robertson, D2000-0009 (WIPO Feb. 29, 2000) (“In the absence of a response, it is appropriate to accept as true all allegations of the Complaint.”).
The Panel finds as follows with respect to the matters at issue in this proceeding.
Complainant”s ALLIANT ENERGY mark was registered to it with the USPTO (Reg. No. 3,063,770) on February 28, 2006. See, Complaint Annex 5. Registration of a mark with the USPTO is sufficient to establish a complainant’s rights in that mark for the purposes of Policy ¶ 4(a)(i). Home Depot Product Authority, LLC v. Samy Yosef / Express Transporting, FA 1738124 (Forum July 28, 2017) (finding that registration with the USPTO was sufficient to establish the complainant’s rights in the HOME DEPOT mark).
Respondent’s Domain Name is confusingly similar to the ALLIANT ENERGY mark, as it incorporates the mark in its entirety, merely omitting the space between the two words, adding the descriptive terms “corp” and “services,” and adding the country code top level domain (ccTLD) “.us.” These changes are not sufficient to distinguish the Domain Name from Complainant’s mark for the purposes of Policy ¶ 4(a)(i). Empowered Medical Solutions, Inc. d/b/a QRS-Direct and QRS Magnovit AG v. NULL NULL / QUANTRON RESONANCE SYSTEMS / JIM ANDERSON / HTR / unknown HTR / HTR, FA 1784937 (Forum June 8, 2018) (“Adding or removing descriptive terms or a gTLD is insufficient to differentiate a disputed domain name from a complainant’s mark under Policy ¶ 4(a)(i).”), CloudFlare, Inc. v. [Registrant], FA 1624251 (Forum Aug. 1, 2015) (holding, “The inclusion of a ccTLD does not alleviate the similarity between a mark and a disputed domain name as per Policy ¶ 4(a)(i).”). The WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”), at ¶ 1.7, states that the test for confusing similarity “typically involves a side-by-side comparison of the domain name and the textual components of the relevant trademark to assess whether the mark is recognizable within the domain name.” Notwithstanding the changes described above, Complainant’s mark is clearly recognizable within the Domain Name, and this establishes its confusing similarity to Complainant’s mark for the purposes of Policy ¶ 4(a)(i).
For the reasons set forth above, the Panel finds that the Domain Name is identical or confusingly similar to the ALLIANT ENERGY mark, in which Complainant has substantial and demonstrated rights.
Rights or Legitimate Interests
If a complainant makes a prima facie case that the respondent lacks rights or legitimate interests in the domain name under Policy ¶ 4(a)(ii), the burden of production shifts to respondent to come forward with evidence that it has rights or legitimate interests in it. Neal & Massey Holdings Limited v. Gregory Ricks, FA 1549327 (Forum Apr. 12, 2014) (“Under Policy ¶ 4(a)(ii), Complainant must first make out a prima facie case showing that Respondent lacks rights and legitimate interests in respect of an at-issue domain name and then the burden, in effect, shifts to Respondent to come forward with evidence of its rights or legitimate interests”). If a respondent fails to come forward with such evidence, the complainant’s prima facie evidence will be sufficient to establish that respondent lacks such rights or legitimate interests. If the respondent does come forward with such evidence, the Panel must assess the evidence in its entirety. At all times, the burden of proof remains on the complainant. WIPO Overview 3.0, at ¶ 2.1.
Policy ¶ 4(c) lists the following three nonexclusive circumstances, any one of which if proven can demonstrate a respondent’s rights or legitimate interests in a domain name for the purposes of Policy ¶ 4(a)(ii):
(i) Respondent is the owner or beneficiary of a trade or service mark that is identical to the domain name;
(ii) Before any notice to respondent of the dispute, respondent’s use of, or demonstrable preparations to use, the domain name or a name corresponding to the domain name in connection with a bona fide offering of goods or services;
(iii) Respondent (as an individual, business or other organization) have been commonly known by the domain name, even if respondent has acquired no trademark or service mark rights; or
(iv) Respondent is making a legitimate noncommercial or fair use of the domain name, without intent or commercial gain to misleadingly divert consumers or to tarnish the trademark or service mark at issue.
Complainant asserts that Respondent has no rights or legitimate interests in the Domain Name because (i) Respondent does not own or have a beneficial interest in a trademark or service mark that is identical to the Domain Name, (ii) Complainant has not authorized or licensed Respondent to use its ALLIANT ENERGY mark, (iii) Respondent is not commonly known by the Domain Name, and (iv) he is not using the Domain Name in connection with a bona fide offering of goods and services or for a legitimate noncommercial or other fair use because he intends to use it for an email account from which to pass himself off as an employee of Complainant and send fake purchase orders to Complainant’s vendors. These allegations are addressed as follows:
It is difficult without conducting a world-wide trademark search to determine whether a third party is or is not the owner or beneficiary of a trademark that is identical to the Domain Name. Complainant has alleged on information and belief that Respondent is not such owner or beneficiary. Respondent having defaulted, there is nothing in the record to suggest that he is. The Panel finds that Respondent is not the owner or beneficiary of a trade or service mark that is identical to the Domain Name.
Complainant states that it has never licensed or authorized Respondent to use its mark in any way. Complainant has specific competence to make this statement, and it is unchallenged by any evidence before the Panel. In the absence of evidence that a respondent is authorized to use a complainant’s mark in a domain name or that a respondent is commonly known by the disputed domain name, the respondent may be presumed to lack rights or legitimate interests in the domain name. IndyMac Bank F.S.B. v. Eshback, FA 830934 (Forum Dec. 7, 2006) (finding that the respondent failed to establish rights and legitimate interests in the <emitmortgage.com> domain name as the respondent was not authorized to register domain names featuring the complainant’s mark and failed to submit evidence that it is commonly known by the domain name), Indeed, Inc. v. Ankit Bhardwaj / Recruiter, FA 1739470 (Forum Aug. 3, 2017) (”Respondent lacks both rights and legitimate interests in respect of the at-issue domain name. Respondent is not authorized to use Complainant’s trademark in any capacity and, as discussed below, there are no Policy ¶ 4(c) circumstances from which the Panel might find that Respondent has rights or interests in respect of the at-issue domain name.”).
The WHOIS report submitted as Complaint Annex 1 lists the registrant of the Domain Name as “joey schumer” and the registrant organization “alliant energy.” The first of these names bears no resemblance to the Domain Name. UDRP panels have consistently held that, in the absence of evidence to the contrary, a registrant name that is materially different from the domain name at issue is competent evidence that the respondent is not commonly known by the domain name. Guardair Corporation v. Pablo Palermo, FA1407001571060 (Forum Aug. 28, 2014) (holding that the respondent was not commonly known by the <guardair.com> domain name according to Policy ¶ 4(c)(ii), as the WHOIS information lists “Pablo Palermo” as registrant of the disputed domain name). The Panel is satisfied that Respondent joey schumer has not been commonly known by the Domain Name within the meaning of Policy ¶ 4(c)(ii).
The fact that the Respondent organization was listed as “alliant energy” is the only evidence before the Panel suggesting that this Respondent may have been known by a name that is similar to the Domain Name. Complainant has stated that it never authorized Respondent to use its ALLIANT ENERGY mark for any purpose, and there is no evidence before the Panel that Respondent actually conducted any legitimate business operations under that name. UDRP panels have held that the mere listing of a name in the WHOIS record, without additional evidence of actual use, does not, in and of itself, establish that a respondent has been commonly known by the name. Moneytree, Inc. v. Matt Sims / MoneyTreeNow, FA1501001602721 (Forum Mar. 3, 2015) (finding that even though the respondent had listed “Matt Sims” of “MoneyTreeNow” as registrant of the <moneytreenow.com> domain name, the respondent was not commonly known by the disputed domain name pursuant to Policy ¶ 4(c)(ii), because he had failed to list any additional affirmative evidence beyond the WHOIS information). A respondent cannot establish that it is commonly known by a domain name by the simple expedient of listing a variation of the domain name with the registrar. On the evidence available, the Panel is satisfied that Respondent has not been commonly known by the Domain Name.
Complaint Annexes 12 and 13 are copies of email exchanges between one “Joey Schumer” using the email addresses “joey@alliantenergycorpservices.com” and “joey@alliantenergycorporateservices.com” and two different equipment vendors in which this Joey Schumer presents himself as an employee of Complainant and purports to deal with the vendors on behalf of Complainant in connectionn with the order of certain pieces of equipment from them. Complaint Annex 10 is a WHOIS report showing Respondent as the registrant of the domain name <alliantenergycorporateservices.com>. Complainant alleges that the domain name <alliantenergycorpservices.com> is also registered to Respondent, but submitted no evidence to support that allegation.[i] Complainant alleges that this domain name is currently subject to a UDRP proceeding, Forum Case No. FA 1902001832130. A Decision transferring that domain name was issued March 27, 2019, but the respondent in that case is named “billy wood,” not joey schumer. Given the similarity in the two emails, it may be that Respondent sent both of them, but in the absence of competent evidence that the <alliantenergycorpservices.com> domain name was registered by the Respondent, the Panel will deem the claim that the email based upon that domain name was sent by Respondent as not proven. Although neither of these two emails is from an email account based upon the Domain Name at issue here, Complainant offers the evidence of Repondent’s use of the other domain name as described above as evidence of his disposition to use domain names confusingly similar to Complainant’s mark for the purpose of impersonating an employee of Complainant and submitting fake purchase orders for equipment. Complainant argues that Respondent would have no reason to register the Domain Name other than to use it to perpetrate the same type of fraud and deception as he did with the other domain name. From the evidence presented it seems likely that this suspicion is well-founded. It is well settled that using a confusingly similar domain name to pass off as a complainant does not qualify as a bona fide offering of goods and services within the meaning of Policy ¶ 4(c)(ii) or a legitimate noncommercial or fair use within the meaning of Policy ¶ 4(c)(iv). Abbvie, Inc. v. James Bulow, FA 1701075 (Forum Nov. 30, 2016) (“Respondent uses the at-issue domain name to pose as Complainant’s CEO by means of email addresses at the confusingly similar domain name in an attempt to determine Complainant’s ability to process a transfer. Using the domain name in this manner is neither a bona fide offering of goods and services under Policy ¶ 4(c)(i), nor a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii)”).
Complainant offered no evidence as to the nature of the web site resolving from the Domain Name, but neither did Repondent. Thus, there is no evidence that Respondent is making any use of the Domain Name for a web site that would qualify as a bona fide offering of goods or services or a legitimate noncommercial or fair use.
Complainant has made its prima facie case. On the evidence presented, and in the absence of any evidence from Respondent, the Panel finds that Respondent has no rights or legitimate interests in the Domain Name.
Policy ¶ 4(b) sets forth a nonexclusive list of four circumstances, any one of which if proven would be evidence of bad faith use and registration of a domain name. They are as follows:
(i) Respondent has registered or has acquired the domain name primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to the complainant who is the owner of the trademark or service mark or to a competitor of that Complainant, for valuable consideration in excess of respondent’s documented out-of-pocket costs directly related to the domain name; or
(ii) Respondent has registered the domain name in order to prevent the owner of the trademark or service mark from reflecting the mark in a corresponding domain name; or
(iii) Respondent has registered the domain name primarily for the purpose of disrupting the business of a competitor; or
(iv) By using the domain name, respondent has intentionally attempted to attract, for commercial gain, Internet users to respondent’s web site or other on-line location, by creating a likelihood of confusion with the complainant’s mark as to the source, sponsorship, affiliation or endorsement of respondent’s web site or location or of a product of service on respondent’s web site or location.
The evidence of Respondent’s use of the Domain Name set forth above in the rights or legitimate interests analysis also supports a finding of bad faith use and registration of that domain. While Respondent’s conduct may not fall neatly within any of the foregoing grounds articulated in Policy ¶ 4(b), that paragraph recognizes that mischief can assume many different forms and takes an open-ended approach to bad faith, listing some examples without attempting to enumerate all its varieties. Worldwcom Exchange, Inc. v. Wei.com, Inc., WIPO Case No. D-2004-0955 (January 5, 2005). The non-exclusive nature of Policy ¶ 4(b) allows for consideration of additional factors in an analysis for bad faith, and impersonating a complainant in emails which fraudulently purport to order goods from third parties has been held to constitute bad faith. Qatalyst Partners LP v. Devimore, FA 1393436 (Forum July 13, 2011) (finding that using the disputed domain name as an e-mail address to pass itself off as the complainant in a phishing scheme is evidence of bad faith registration and use). As noted above, there is no evidence that Respondent has yet used the Domain Name for this purpose, but his inclination to do so is evident, and given the patently infringing nature of the Domain Name it is difficult to imagine any use he could make of it that would not qualify as being in bad faith.
Second, it is evident from the close similarity between Complainant’s mark and Respondent’s Domain Name and from the fact that Respondent has actually impersonated Complainant, that Respondent had actual knowledge of Complainant’s mark in November 2018, when he registered the Domain Name. See, Complaint Annex 1 for registration date. In light of the nonexclusive nature of Policy ¶ 4(b), actual knowledge of a complainant’s rights in a mark prior to registering an identical or confusingly similar domain name has often been held to be evidence of bad faith registration and use for the purposes of Policy ¶ 4(a)(iii). Univision Comm'cns Inc. v. Norte, FA 1000079 (Forum Aug. 16, 2007) (rejecting the respondent's contention that it did not register the disputed domain name in bad faith since the panel found that the respondent had knowledge of the complainant's rights in the UNIVISION mark when registering the disputed domain name).
For the reasons set forth above, the Panel finds that Respondent registered and is using the Domain Name in bad faith within the meaning of Policy ¶ 4(a)(iii).
Complainant having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <alliantenergycorpservices.us> Domain Name be TRANSFERRED from Respondent to Complainant.
Charles A. Kuechenmeister, Panelist
April 3, 2019
[i] Complainant’s list of Annexes refers to an Annex 9 purporting to be a WHOIS report for this domain name, but Annex 9 is simply a duplicate of Annex 4 and offers no information about the domain name.
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